Swing set spawns proposed Marblehead bylaw change

Thursday

Apr 25, 2013 at 12:01 AMApr 25, 2013 at 11:04 AM

Article 39, one of the three citizen-sponsored articles on the 2013 Marblehead Town Meeting warrant, will ask voters to amend a bylaw to allow property owners across town to place roofed or unroofed play structures that are two feet or more off the ground within their yard setbacks five feet from a property line. The change will require a two-thirds vote to pass.

William Dowd / marblehead@wickedlocal.com

Article 39, one of the three citizen-sponsored articles on the 2013 Marblehead Town Meeting warrant, will ask voters to amend a bylaw to allow property owners across town to place roofed or unroofed play structures that are two feet or more off the ground within their yard setbacks five feet from a property line. The change will require a two-thirds vote to pass.

As it stands now, play structures are governed by the town’s Chapter 200, Section 15B(3), according to Building Commissioner Bob Ives. That bylaw requires residents to get a special permit from the town’s Zoning Board of Appeals before erecting “structures” in yard setbacks, which are different depending on where a resident’s property line lies.

At the helm of this proposed article is a mother of three young children, Farida Peters-Abbadi of Mohawk Road. Peters-Abbadi, an attorney, was unaware of setbacks or that play structures were governed by a zoning bylaws and installed a swing set 11 feet from the ground at its highest point and seven feet from the family’s property line in March 2012.

“When we has this swingset installed, I had no idea that there was a thing called ‘setbacks’ or that play structures were treated as buildings,” said Peters-Abbadi.

But she quickly learned of the bylaw when her Mohawk Road neighbors, Phillip and Lisa Mancuso, filed an official complaint with the Building Commissioner’s office, stating that the family’s swing set intruded on the 15-foot property-line setback for her zoning district. In their complaint, the Mancusos say the structure obstructs 65 percent of their view and intrudes on their privacy.

“Once a complaint is filed, we look at its validity and make a decision,” said Ives, adding that that decision is to either take action, take no action or, if deemed necessary, send it to the Zoning Board of Appeals.

“[A] couple of days later, I got a call from the building commissioner, saying they had filed the complaint, and I got the letter saying I have 30 days to either move it out of the setback, get rid of it or appeal for special permit to allow it where it is,” said Peters-Abbadi.

She explained that little did she know that she would be opening a zoning can of worms.

“It’s great to have access to a private playset; you don’t have to take 20 [minutes] to load the car and, not to mention, you know that it’s safe,” she said.

After learning of the complaint, she sent an email to the Mancusos. In that email, she asked if the complaint stemmed from aesthetics or the kids being loud. If so, she said she had alternatives for remedying the issue.

The Mancusos said they decided not to reply to the email, given that the bylaws and ZBA would seem to have jurisdiction over the situation.

“We believe the bylaws of the town of Marblehead should be followed and complied with, including obtaining the proper permitting and approvals before any structure is erected on anyone’s property,” said the couple in a joint statement. “The guidelines for the size of any structure should be in accordance with the town of Marblehead bylaws.”

Peters-Abbadi has documented with photographs 60 play structures in and around areas she runs. She presented her findings to Marblehead’s Planning Board at an April 8 public hearing on Article 39, reiterating her belief that there is a lack of public awareness that play structures are treated like buildings and that the setback rule under the zoning bylaws applies.

Following Ives’ recommendation, she submitted an application last October to the Marblehead Zoning Board of Appeals seeking a special permit for the swing set to remain.

“Because a play structure is a considered a building, and ours is considered non-conforming, I had to go through the normal process as if you were building a home,” said Peters-Abbadi.

This process required her to pay a $75 application fee, the cost associated with filing a public notice and $600 to have a survey plot plan done.

“A public hearing was scheduled on Nov. 27 with the Zoning Board of Appeals, but that got postponed to January, because I was [in] the hospital,” Peters-Abbadi explained.

When the hearing finally did happen, the Mancusos filed documents objecting to the granting of a special permit, claiming that the plot plan was “intentionally presented incorrectly” and that “no advance notice was provided before the structure was installed.”

After much debate on whether the plot plan was done properly, the board gave Peters-Abbadi the option to withdraw her application without prejudice and have the survey done again, an offer she accepted.

When a public hearing was held for the article before the town’s Planning Board, board member Edward Nilsson explained the play-structure bylaw, as its enforced now, is “complaint driven.”

“When there is an observed violation, we will enforce the bylaw. When we see something being installed [that’s non-conforming], whether by a citizen or not, we go after violation regularly,” said Ives. “We don’t always catch every single play structure that goes up because they just appear; sometimes it’s invisible or can’t be seen from the street or sidewalk, but we’re proactive and go after this stuff regularly.”

So how does this all fit into Article 39?

Ives said his office would not be weighing in on this or any other citizen-petition article, saying it would be a “conflict of interest.” Peters-Abbadi said Ives did inform her about the citizen-petition process, which she “jumped on right away,” obtaining the sponsor sheets and pulling people aside for their signatures. Two days before the warrant closed, her proposal was placed on the warrant.

Peters-Abbadi explained that she is concerned about more than just her own personal situation.

“I don’t want others to go through what I’m going through; a swing set is a swing set,” she said.

The Mancusos counter that the current bylaws, which were “developed over a long period of time... have been debated, voted on and approved by the citizens” and “enacted to respect the [citizens’] needs.”

“We do not believe a change in the current bylaws, eliminating the need for setbacks from property lines for play structures, or any structure for that matter, and which would eliminate the need for an application to the Zoning Board for an individual application that would allow a variance to the existing bylaws, is in the best interest of the town,” said the Mancusos in their statement.

They added that a change would avert abutting neighbors from “having a say about the structures that can be erected next to their property” and “how close a structure can be erected to their property.”

The Planning Board, during its April 8 public hearing, requested more information, asking Peters-Abbadi to consider amending her proposal to include height limitations before giving its recommendation, which will now come at Town Meeting.